United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PATTI B. SARIS, Chief U.S. District Judge
Adilson Barbosa moves to dismiss the indictment charging him
with illegal reentry in violation of 8 U.S.C. § 1326.
Relying on Pereira v. Sessions, 138 S.Ct. 2105
(2018), he argues that his prior removal order was entered
without jurisdiction because his Notice to Appear
("NTA"), the document served on an alien and filed
with the immigration court that initiates removal
proceedings, did not include the date and time of his removal
hearing. After a hearing, the Court holds that Barbosa fails
to satisfy the three requirements of 8 U.S.C. § 1326(d)
in his collateral attack on his prior removal order.
Accordingly, the Court DENIES
Barbosa's motion to dismiss the indictment (Docket No.
is a citizen of Brazil. He entered the United States without
inspection on October 22, 2003. He worked as a roofer for a
year in Boston, Massachusetts and then in Pompano Beach,
Florida. He lived and worked in Seattle, Washington for about
six months before deciding to return to Boston.
December 9, 2008, as Barbosa was driving from Seattle to
Boston, he was stopped near Fargo, North Dakota by the North
Dakota Highway Patrol. He admitted he was in the country
unlawfully and was taken into custody. The following day,
U.S. Immigration and Customs Enforcement ("ICE")
served Barbosa with an NTA to initiate removal proceedings.
The NTA stated that he was ordered to appear in immigration
court in Bloomington, Minnesota "on a date to be set at
a time to be set." Dkt. No. 50-2 at 1. The NTA was
translated into Portuguese for Barbosa. Barbosa requested an
expedited removal hearing and waived his right to a ten-day
period prior to appearing before an immigration judge.
appeared in immigration court on December 18. He was
represented by an attorney. After consulting with his
attorney, Barbosa declined a continuance. He then conceded
his removability and decided not to seek any relief from
removal. The immigration judge ordered Barbosa removed to
Brazil. Barbosa waived his right to appeal his removal order
and was removed from the United States on January 12, 2009.
reentered the United States at some point after his 2009
removal. On June 7, 2017, he was arrested in Framingham,
Massachusetts for assault and battery with a dangerous
weapon. The next day, ICE took him into custody and
reinstated his 2008 removal order. Barbosa waived his right
to contest the reinstatement before an ICE officer. Barbosa
was also indicted for illegal reentry in violation of 8
U.S.C. § 1326. The government dismissed the indictment
when Barbosa was removed to Brazil on August 23, 2017.
returned to the United States for a third time. He was
arrested on an open warrant in Framingham, Massachusetts on
December 6, 2017. On April 6, 2018, he was indicted for the
second time with illegal reentry in violation of 8 U.S.C.
moves to dismiss the indictment on the basis that his 2015
removal order was entered without jurisdiction because the
NTA filed with the immigration court did not include the date
and time of his removal hearing. He relies on the Supreme
Court's recent decision in Pereira v. Sessions,
which held that an NTA without the date and time of the
removal hearing was not a valid NTA under 8 U.S.C. §
1229(a) and did not trigger the stop-time rule for
cancellation of removal. 138 S.Ct. at 2110. Agency regulations
require the filing of an NTA with the immigration court to
trigger the court's jurisdiction for removal proceedings,
8 C.F.R. § 1003.14(a), but the regulatory definition of
an NTA does not require that it include the date and time of
the hearing, see icK §§ 1003.15, 1003.18. Because
Barbosa's NTA did not include the date and time of his
hearing, he contends it was invalid under Pereira
and did not vest the immigration court with jurisdiction to
order his removal. He alleges his prior removal order is
therefore void and cannot support an illegal reentry charge.
Standard of Review
Federal Rule of Criminal Procedure 12(b)(1), a defendant
"may raise by pretrial motion any defense . . . that the
court can determine without a trial on the merits." Pure
questions of law are properly considered on a pretrial motion
to dismiss. United States v. Pope, 613 F.3d 1255,
1260 (10th Cir. 2010); United States v. O'Brien,
994 F.Supp.2d 167, 174 n.2 (D. Mass. 2014). Because courts
must treat the indictment's allegations as true in
evaluating a motion to dismiss, defendants cannot raise
claims relating to the sufficiency of the evidence underlying
the indictment in a motion to dismiss. United States v.
Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011). However,
"a district court may consider a pretrial motion to
dismiss an indictment where the government does not dispute
the ability of the court to reach the motion and proffers,
stipulates, or otherwise does not dispute the pertinent
facts." United States v. Musso, 914 F.3d 26,
29-30 (1st Cir. 2019) (quoting United States v.
Weaver, 659 F.3d 353, 355 n.* (4th Cir. 2011)).